Soli J Sorabjee in The Indian Express
Cruelty is a ground for divorce under the Hindu Marriage Act. The problem is that this Act does not define cruelty. A bench of the Supreme Court comprising Justices Sathasivam and Ganguly in a recent illuminating judgment has dealt with this vexed problem. Justice Ganguly, speaking for the Court, rightly points out that cruelty in matrimonial cases can be of infinite variety. “It may be subtle or even brutal and may be by gestures and words. It may take the form of violence. At times, it may be just an attitude or an approach.” Again, the alleged cruelty “may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance”. In a realistic vein, the Bench approving the observations of Lord Reid in a House of Lords judgment ruled that in matrimonial cruelty cases there is no presumption that the parties are reasonable people “because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people”.
Thereafter follows a wholesome caveat: “We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.” One passage in this elegantly penned judgment—”silence in some situation may amount to cruelty”—is puzzling. When a spouse is ranting and shrieking, silence is the best option, otherwise there would be endless vociferous recriminations which would certainly add to noise pollution. There is real silence when a human being withdraws from the noise in order to find peace in his inner sanctuary.
Incidentally, silence can be cruel when a judge hearing a case maintains a monastic silence with the inscrutable face of the sphinx. Counsel has no clue about what the judge is thinking, whether he has understood counsel’s submissions or they have passed him by. Should counsel repeat his or her arguments or keep silent like the judge? A cruel predicament indeed and an instance of subtle judicial cruelty.